Kansas AG Opinions, 1988

In our opinion, adoption of the Kansas City Plan, Inc., as an affirmative action program for the city of Kansas City would not violate Article 15, Section 12 of the Kansas Constitution (commonly known as the "right to work amendment") or the Equal Protection Clause of the United States Constitution.

When a conditional license is granted to an applicant, competing applications are denied. At such time, the unsuccessful applicants are eligible for the process of refunding the deposit to commence. The refund is subject to set-off for administrative and investigative expenses incurred after April 7, 1988. The statutes and regulations do not preclude the applicant from refiling an application when the competing applicant's conditional license expires for lack of a financial commitment.

Pursuant to the provisions of K.S.A. 48-323, the Kansas Military Board is to procure and keep in force fire and extended coverage insurance on armories under its control. Although the term "armory" is not defined in the statute, such term would include storage buildings (constructed upon property generally managed and cared for by the Kansas Military Board pursuant to K.S.A. 48-301 et e2a designed and used principally for .)

1988 House Bill No. 2812 (L. 1988, ch. 126) requires "any item of clothing . . . intended to protect firefighters from death or injury while fighting fires" to meet the standards established by the National Fire Protection Association. This requirement does not extend to work/station clothing worn by firefighters while on duty.

It is our opinion that the Kansas parimutuel racing act does not permit simulcasting between licensed racetrack facilities.

It is our opinion that a valid petition pursuant to K.S.A. 1987 Supp. 19-27a03 must: 1) contain the statements set forth in subsection (b) of that statute, and 2) follow the applicable provisions of K.S.A. 25-3601 et seq. Without a proper petition, or the alternative action by the secretary of health and environment or the local health officer, the board lacks jurisdiction to take action pursuant to K.S.A. 1987 Supp. 19-27a01 et seq.

K.S.A. 1987 Supp. 2-610(b) does not mandate action by the board of county commissioners within 10 days after initial receipt of a proposed budget. If the proposed budget is not approved within 10 days after its receipt, it should be returned to the board in a timely manner. The board may then resubmit it to the commission for action according to the procedures set forth in the statute.

In light of 1988 legislative changes, production contracts that do not involve pork processors as defined by L. 1988, ch. 99., sec. 56 and that by statute do not result in the acquisition of agricultural land, do not violate the corporate farming act, K.S.A. 17-5902 et seq. Cited herein: K.S.A. 17-5902 et seg., as amended by L. 1988, ch. 99, §5 53-56; K.S.A. 47-1501(c).

Courts presume the constitutionality of a statute and resolve all doubts in favor of its validity. This presumption, when combined with the lack of prohibitory language in K.S.A. 25-3802, leads us to conclude that, while state law does not require an officer of a county central committee to be a member of a precinct committee, a political party may require such membership.

ROBERT T. STEPHAN ATTORNEY GENERAL August 12, 1988 ATTORNEY GENERAL OPINION NO. 88- 111 The Honorable Robert G. Frey State Senator, Thirty-Eighth District P.O. Box 1177 Liberal, Kansas 67901-1177 Re: Census -- Population or Census Statistics; Application -- Enumeration of Residen…

K.S.A. 8-237 allows a restricted licensee to operate a motor vehicle (1) while going to or from or in connection with any job or employment or (2) for purposes of school attendance. In our opinion the work related criteria does not require a formal employment agreement. The school attendance restriction permits operation of a motor vehicle only for attendance purposes and does not permit operation for the purpose of driving to and from school for other functions or activities. Cited herein: K.S.A. 8-237; 8-245; 72-1111.

Fee title to real estate properly dedicated to public use vests in the local unit of government in trust for such public use, and may not be lost through nonuse. Absent an exemption, the local unit of government which owns the fee is responsible for property taxes thereon. Cited herein: K.S.A. 1987 Supp. 12-406.

ROBERT T. STEPHAN ATTORNEY GENERAL August 5, 1988 ATTORNEY GENERAL OPINION NO. 88- 108 Melvin F. Corn, Director Area Vocational-Technical School 2215 N. Kansas P.O. Box 1599 Liberal, Kansas 67905-1599 Re: Schools -- Miscellaneous Provisions -- Use of Tobacco Products in Public Sc…

L. 1988, ch. 115, which allocates good time credits for the purpose of determining parole eligibility and conditional release should be applied retroactively to those sentenced under K.S.A. 21-4618 prior to July 1, 1982.

Moneys credited to the alcohol and drug safety action fund pursuant to K.S.A. 1987 Supp. 8-1008(e) may not be used to pay for a training course on drug and alcohol abuse attended by a municipal court judge.

A voting machine meets the requirement of providing facilities for write-in votes if it provides a key board on which a voter may "type" a write-in candidate's name.

ROBERT T. STEPHAN ATTORNEY GENERAL July 19, 1988 ATTORNEY GENERAL OPINION NO. 88- 104 The Honorable George Teagarden State Representative, Twelfth District Route 2, Box 89A LaCygne, Kansas 66040 Re: Mentally Ill, Incapacitated, Dependent Persons -- Social Welfare -- Powers and Du…

Under the provisions of subsection (d) of K.S.A. 25-3602, any person who has signed a petition who desires to withdraw his name may do so by giving written notice to the county election officer or other designated official not later than the third day following the date upon which the petition is filed. In our opinion, the written notice of withdrawal is subject to the verification requirement imposed by subsection (c) of K.S.A. 25-3602.

CHAMBERS OF FRANK J. YEOMAN, JR. JUDGE OF THE DISTRICT COURT DIVISION EIGHT SUITE 3 I 0 July 13, 2000 Robin Wolfe, Supervisor Amendment Unit, Vital Statistics 900 SW Jackson, Suite 151 Topeka, KS 66612-2221 RE: Proposed Change of Birth Certificate--In re: K.K.D. 199510024673 Dear…

ROBERT T. STEPHAN ATTORNEY GENERAL July 13, 1988 ATTORNEY GENERAL OPINION NO. 88- 100 The Honorable Fletcher Bell, Commissioner Kansas Insurance Department 420 SW 9th St. Topeka, Kansas 66612 Re: Automobiles and Other Vehicles--Driving Under the Influence of Alcohol or Drugs; Rel…

An option contract is a continuing offer which, when supported by consideration, may not be revoked by the offeror. An option to purchase an interest in a bank is not a direct or indirect ownership of that bank. However, such an option does constitute control over the subject matter of the agreement, and the arrangement would violate Kansas law which prohibits a bank holding company from directly or indirectly acquiring ownership or control of more than 5% of the shares of a bank which has not been in existence for five or more years.

A person who has a prior conviction for driving under the influence (DUI) which has been expunged is ineligible for DUI diversion in municipal court.

ROBERT T. STEPHAN ATTORNEY GENERAL July 8, 1988 ATTORNEY GENERAL OPINION NO. 88- 97 Daniel D. Creitz Attorney at Law P.O. Box 67 Erie, Kansas 66733 Re: State Departments; Public Officers and Employees -- Public Officers and Employees -- Open Public Meetings; Rural Water Districts…

A county is not required to provide ambulance services. If the county does provide services, it may not do so in any part of the county in which a taxing district already provides ambulance services, but must reimburse the taxing district a proportionate share of funds determined pursuant to statute.

ROBERT T. STEPHAN ATTORNEY GENERAL July 8, 1988 ATTORNEY GENERAL OPINION NO. 88-95 Joe F. Jenkins, II Chairman, Abstracter's Board of Examiners Title Building, 727 Ann Ave. Kansas City, Kansas 66101-3066 Re: Insurance -- General Provisions Relative to Casualty, , Surety and Fidel…

K.S.A. 1987 Supp. 79-1482 permits a tax levy in order to fund the costs of conducting the countywide reappraisal program in compliance with the act. In order to comply with the act, certain costs and activities will necessarily occur after the year 1989. Thus, K.S.A. 1987 Supp. 79-1482 authorizes and permits a levy to be made in years subsequent to 1989.

ROBERT T. STEPHAN ATTORNEY GENERAL July 8, 1988 ATTORNEY GENERAL OPINION NO. 88-93 Ronald S. Reuter Roeland Park City Attorney P.O. Box 7933 Overland Park, Kansas 66207 Re: State Departments; Public Officers and Employees-- Kansas Tort Claims Act--Definitions Synopsis: A member o…

ROBERT T. STEPHAN ATTORNEY GENERAL July 7, 1988 ATTORNEY GENERAL OPINION NO. 88- 92 Mr. Stephen J. Smith Burlington City Attorney 519 Commercial P.O. Box 921 Emporia, Kansas 66801-0921 Re: Counties and County Officers--General Provisions-- Home Rule Powers Constitution of the Sta…

K.S.A. 1987 Supp 22-2512 applies to the disposition of all evidence which is seized but is no longer required for evidence, regardless of the circumstances concerning its seizure or subsequent use. When evidence is not turned over to the rightful owner, then it is necessary for the prosecuting attorney to obtain an order of the district court before selling or destroying the property.

ROBERT T. STEPHAN ATTORNEY GENERAL July 1, 1988 ATTORNEY GENERAL OPINION NO. 88- 90 The Honorable Don Montgomery State Senator, Twenty-First District 218 Main Sabetha, Kansas 66534-1835 Re: Schools--School District Equalization Act; Determination of General State Entitlements; Eq…

A government agency such as the state department of social and rehabilitation services (S.R.S.) may obtain consumer reports from a consumer reporting agency for any of the permissible purposes outlined in K.S.A. 50-703. In our opinion, collecting overpaid benefits is not one of the permissible purposes. However, collecting overdue state hospital accounts and medical subrogation accounts, and conducting background investigations of S.R.S. staff may be considered permissible purposes in certain circumstances.

Several exceptions to the open records act permit the secretary of Kansas Department of Health and Environment, in his discretion, to refuse disclosure of records maintained by that agency when those records are generated from laboratory tests concerning sexually transmitted diseases. Disclosure of those records may be obtained by consent of the individual whose name appears on the record. The secretary may not disclose records pertaining to prenatal syphilis tests without consent of the woman.

By virtue of authority granted to the Kansas Arts Commission by K.S.A. 74-5204, the Commission is permitted to make the proposed grants of economic development initiative fund moneys pursuant to 1988 House Bill No. 2808 and K.S.A. 1987 Supp. 79-4804.

Section 2(b) of 1988 Senate Bill No. 574 provides that the Secretary of Commerce "shall develop criteria for the review and analysis of loan applications under this section." As the criteria to be developed appear to fall within the definition of a rule or regulation, as set forth in K.S.A. 77-415(4), they must be adopted and filed in accordance with the provisions of K.S.A. 77-415 et seq.

42 U.S.C. 290aa, Part C, Sec. 523b(1) prohibits the use of federally provided amounts as a non-federal match contribution. Once a recipient provider has properly received Medicaid reimbursement funds and is free to expend them in any legally permissible manner, those funds become he freely alienable property of that recipient. ' Thus, such a recipient and not the federal government provides the funds which may thereafter be used to match a grant pursuant to 42 U.S.C. 290aa, Part C, Sec. 523(a).

K.S.A. 1987 Supp. 19-4603 sets forth procedures whereby qualified electors of a county may establish a county hospital. The statute provides that qualified county voters residing in an existing hospital district may vote on whether or not to dissolve or detach from the hospital district in order to become part of a county hospital. The prior or continued existence of one or more hospital districts within the county does not automatically defeat the organization of a county hospital.

A city of the second class may, pursuant to K.S.A. 14-1041 et E2a contract with an individual .,

K.S.A. 1987 Supp. 36-206 and 36-207, add "dwelling unit" to penal statutes of defrauding an innkeeper or owner. K.S.A. 1987 Supp. 36-206 and 36-207, as applied to tenants, do not violate Section 16 of the Bill of Rights of the Constitution of the State of Kansas nor do they violate the due process provisions of the Fourteenth Amendment of the United States Constitution.

ROBERT T. STEPHAN ATTORNEY GENERAL June 9, 1988 ATTORNEY GENERAL OPINION NO. 88- 81 The Honorable James L. Francisco State Senator, Twenty-Sixth District 217 E. English Mulvane, Kansas 67110-1462 Re: State Boards, Commissions and Authorities-- Parimutuel Racing; Kansas Parimutuel…

Pursuant to K.A.R. 28-29-1, Harvey county may not enact an ordinance that impedes the interstate or intrastate transportation or disposal of solid waste collected in Harvey county by requiring that all such solid waste remain in Harvey county. Because disposal of solid waste is affected with a public interest, Harvey county may, where not otherwise precluded, establish a reasonable and nondiscriminatory rate schedule for services connected with such disposal if the schedule bears a rational relation to that public interest.

ROBERT T. STEPHAN ATTORNEY GENERAL June 8, 1988 ATTORNEY GENERAL OPINION NO. 88- 78 The Honorable Richard L. Bond State Senator, Eighth District 9823 Nall Overland Park, Kansas 66207 Re: Taxation--Kansas Retailers' Sales Tax--Tax Imposed Synopsis: K.S.A. 1987 Supp. 79-3603(p) imp…

ROBERT T. STEPHAN ATTORNEY GENERAL June 2, 1988 ATTORNEY GENERAL OPINION NO. 88- 77 The Honorable Alfred G. Schroeder Chairman Kansas Racing Commission 128 North Kansas Avenue Topeka, Kansas 66603-3621 Re: State Boards, Commissions and Authorities-- Parimutuel Racing; Kansas Pari…

A prescription order for a medication which may be dispensed without such an order does not elevate the medication to the status of a prescription - only drug for purposes of the Kansas retailers' sales tax act. To be exempt from the tax imposed by that act, the drug must be one which is prohibited by law from being dispensed without a prescription.

A local government cannot be held liable for a violation of civil rights by its agents under 42 U.S.C. §1983 on the basis of a respondeat superior theory. Local governments are liable only when execution of a government policy or custom inflicts the injury.

ROBERT T. STEPHAN ATTORNEY GENERAL. June 2, 1988 ATTORNEY GENERAL OPINION NO. 88- 74 The Honorable Don Montgomery State Senator, Twenty-First District 1218 Main Sabetha, Kansas 66534-1835 Re: Crimes and Punishments -- Animals and Nuisances -- Unlawful Sales or Injections of Live …

ROBERT T. STEPHAN ATTORNEY GENERAL May 25, 1988 ATTORNEY GENERAL OPINION NO. 88- 73 The Honorable Betty Jo Charlton State Representative, Forty-Sixth District 1624 Indiana Lawrence, Kansas 66044 Re: Eminent Domain -- Procedure Act -- Compensation Synopsis: 1988 House Bill No. 270…

An appointed non-lawyer member may not continue membership on the judicial nominating committee once that member has been granted a temporary permit to practice law.